United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
Tishner had total hip replacement surgery on May 31, 2012. He
has sued Wright Medical Group, Inc., and Wright Medical
Technology, Inc. He alleges, among other things, that the hip
implant-the PROFEMUR® hip system-is defective. Tishner
says that Wright Medical Technology designed and manufactured
his hip implant, that Wright Medical Group played a
significant role in its design, and that Wright Medical
Technology is merely the alter ego of Wright Medical Group.
Wright Medical Group has filed a motion to dismiss for lack
of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2). Document #5. Wright Medical Group and
Wright Medical Technology have filed a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6). Document
#7. The Court defers consideration of the jurisdictional
issue to allow for discovery to determine the existence of
personal jurisdiction over Wright Medical Group.
district court has the discretion to allow jurisdictional
discovery. See Lakin v. Prudential Sec., Inc., 348
F.3d 704, 713 (8th Cir. 2003) (citing Gen. Elec. Capital
Corp. v. Grossman, 991 F.2d 1376, 1388 (8th Cir. 1993)).
“[J]urisdictional discovery should be permitted where
the plaintiff offered ‘documentary evidence, and not
merely speculations or conclusory allegations, '
regarding the defendant's contacts with the forum
state.” Greenbelt Res. Corp. v. Redwood
Consultants, LLC, 627 F.Supp.2d 1018, 1027-28 (D. Minn.
2008) (quoting Steinbuch v. Cutler, 518 F.3d 580,
589 (8th Cir. 2008)). Such discovery is “particularly
appropriate where the defendant is a corporation.”
Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324,
336 (3d. Cir. 2009). See also Surpitski v. Hughes-Keenan
Corp., 362 F.2d 254, 255-56 (1st Cir. 1966) (reasoning
that a plaintiff who is diligent and is a “total
stranger to a corporation” should not be forced
“try” the issue of personal jurisdiction without
the benefit of discovery)).
has provided the Court with more than speculations and
conclusory allegations regarding Wright Medical Group's
contacts with Arkansas, the forum state. See
Document #12. First, Tishner has submitted the corporate
filing information for Wright Medical Technology in Arkansas
and Wright Medical Group in Tennessee. Documents ##12-1,
12-2. Wright Medical Technology lists its foreign address as
the principal address of Wright Medical Group. Id.
Second, Tishner has submitted a Wright Medical Group annual
report, which says that Wright Medical Group acquired a
company called Cremascoli and several of its hip implant
products designed for the European market, including the
PROFEMUR® hip system. Document #12-4 at 10. The report
The PROFEMUR-TM- R was designed by Cremascoli for the
European market. Although [Wright Medical Group] is currently
selling the product in the U.S., [Wright Medical Group] is
also developing a modified version and instrumentation to
address the needs of U.S. surgeons. The new system, the
PROFEMUR-TM-USA Modular Hip will capitalize on the successful
clinical history of the current PROFEMUR-TM-R product while
incorporating new technology into the design.
Id. at 13. Third, Tishner has submitted a Wright
Medical Group financial statement filed with the Securities
Exchange Commission, which discloses in a section entitled
“Product Liability” certain losses arising out of
claims against Wright Medical Group based on damages
resulting from the “fracture of a PROFEMUR® long
titanium modular neck.” Document #12-7 at 25.
evidence raises questions about Wright Medical Group's
role in the manufacture, design, and distribution of the hip
implant Tishner alleges to be defective, and Wright Medical
Group's relationship with Wright Medical Technology.
Therefore, the Court orders discovery for the purpose of
establishing personal jurisdiction.
defendants have moved to dismiss Counts IV, V, VI, VII, VIII,
IX, and X of the complaint for failure to state a claim. They
have also moved to strike the demand for prejudgment
interest. Document #7. In response, Tishner has agreed to
dismiss Counts IV, V, VI, VII, and IX. Tishner also has
withdrawn the claim for prejudgment interest. With these
concessions, the remaining issue is whether the complaint
states a claim for relief in Count VIII, which alleges
constructive fraud, and Count X, which alleges a claim for
punitive damages. The present issue is not whether the
defendants are liable for constructive fraud or punitive
damages but whether the complaint meets the pleading
standards in the Federal Rules of Civil Procedure as to those
claims. The Court has concluded that they do.
Court defers consideration of Wright Medical Group's
motion to dismiss pursuant to Rule 12(b)(2) until the parties
have conducted limited discovery on the issue of whether
personal jurisdiction exists over Wright Medical Group. The
case will proceed on the following schedule:
(1) The parties will complete jurisdictional discovery within
60 days of the entry of this Order.
(2) The parties will submit simultaneous briefs on the issue
of personal jurisdiction within 30 days of the completion of
defendants' motion to dismiss is GRANTED IN PART and
DENIED IN PART. Document #7. Counts IV, V, VI, VII, and IX
are dismissed. The claim for prejudgment interest also is
dismissed. The motion is denied as ...